R v Fordham [2009] NSWSC 95

New South Wales Supreme Court

CITATION : R v Fordham [2009] NSWSC 95

HEARING DATE(S) : 4 December 2008, 18 February 2009

JUDGMENT DATE : 18 February 2009

JUDGMENT OF : Mathews AJ

DECISION : Sentenced to a non-parole period of 11 years commencing on 18 July 2007 and expiring on 17 July 2018, together with an additional term of three years and eight months commencing on 18 July 2018 and expiring on 17 March 2022.

CATCHWORDS : CRIMINAL LAW - sentence - plea of guilty to murder - planned killing - misguided belief in self-protection - assistance to authorities, both past and future

LEGISLATION CITED : Crimes Act 1900 s 21A

CATEGORY : Sentence

PARTIES : Regina (Crown) Dean Reginald Fordham (Offender)

FILE NUMBER(S) : SC 2008/12898

COUNSEL : TW Thorpe (Crown) J Stratton SC (Offender)

SOLICITORS : Office of the Director of Public Prosecutions (Crown) Kerry Robinson, Legal Aid Commission (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

Mathews AJ

Wednesday 18 February 2009

2008/12898 R v Dean Reginald FORDHAM

REMARKS ON SENTENCE 1 HER HONOUR: On 22 October 2008 Dean Fordham pleaded guilty on arraignment to a charge that, on 23 June 2007, he murdered David Harrison. 2 The background of the matter is as follows. Towards the end of 2006 the offender first met a woman I will refer to as EB, who was then 21 years old. She had two children, a boy born in December 2002 and a daughter born in October 2004. The father of the children was in prison in South Australia, having been convicted of detaining and sexually assaulting her. EB had been in some sort of relationship with the deceased for some years, albeit on a sporadic basis. It was through her that the offender first met the deceased. They had met on two or three occasions before June 2007. 3 It is unnecessary for present purposes to describe the history of the relationship which developed between the offender and EB. It is clear, as I shall describe later, that the offender was smitten by her, and that he dearly loved her children. In about May 2007, they moved, together with the two children, into a rented house in Muswellbrook. 4 At that time the deceased was living with his parents in Melbourne. He had maintained contact with EB, and in June 2007 he arranged to drive to Muswellbrook and visit her. He arrived at the home rented by EB and the offender in the early hours of 22 June 2007. When his parents were unable to contact him two days later, he was listed as a missing person. EB told the police that he had left the Muswellbrook home in the early hours of 23 June, intending to drive to Newcastle. In fact, as it later emerged, he was murdered in the early hours of 23 June, in circumstances which I shall describe shortly. 5 Not long afterwards, EB and the offender were evicted from the Muswellbrook home. EB moved into a Women's Refuge at Gosford. On 16 July 2007 she told another resident of the Refuge, Ms Simpson, that she and the offender had stabbed the deceased and later disposed of his body. She said that the deceased was a hit man, and showed Ms Simpson what she said was his "hit list". Ms Simpson observed that it looked more like the page from an address book to her. EB described the circumstances of the killing in considerable detail, in terms which were essentially compatible with the account later given by the offender in his ERISP. In this account she, EB, admitted to having played a major role in the killing. Indeed, she said that it was she who had arranged for the offender to kill the deceased. She showed Ms Simpson a message on her mobile phone which she said had led her to fear violence from the deceased. The message said: "You're nothing but a fucking loser like your mother. You want to hurt my heart. I'll fuck you and your kids up." 6 The next day Ms Simpson reported the matter to the Gosford Police. She gave a very detailed account of EB's conversation with her the previous day. Later that day, 17 July, the police conducted an ERISP with EB at Gosford Police Station. She admitted that the deceased had been stabbed to death at the Muswellbrook house, but essentially placed all responsibility upon the offender. She said that she did not call the ambulance or the police because she was scared of the offender. It was he who, on this account, made her clean up the bloodstains afterwards. At first she denied much of the story said to have been given to Ms Simpson the previous day, although later she appeared to concede a greater involvement in the planning of the killing. 7 On 18 July 2007 the offender was arrested, and an ERISP was conducted at the Entrance Police Station. He freely admitted his involvement in the killing of the deceased. He told police that he had fallen in love with EB and her two children, and had killed the deceased in order to protect the three of them, as well as himself. He said that EB had shown him what she described as a "hit list", with a number of names on it, including hers and his. EB had arranged for the visit of the deceased with the intention of murdering him. Indeed, she had drawn up a list of things which she and the offender were to purchase in order to clean up after the killing and to facilitate the disposal of the body. The circumstances of the killing itself were as follows. 8 On the night of 22 June 2007, the deceased and EB had gone into Muswellbrook, leaving the offender minding the two children. They returned home at about 2.00 am on 23 June. Shortly before their arrival, EB telephoned the offender, telling him that this was the time. The offender went out to the car, carrying a knife. When the deceased alighted from the car, the offender stabbed him in the face. The deceased jumped back, saying "what are you doing?" He then started to run away. EB ordered the offender to run after him and catch him. This he did, and he walked the deceased back to the house and into the garage. The offender sat the deceased on a seat, and asked him whether he, EB and the children were on his hit list. The deceased nodded his head, at which the offender proceeded to inflict multiple stab wounds, as I shall describe shortly. In due course he stopped and went into the house where he and EB proceeded to take some cannabis. A little later she went out to the garage, and returned calling out: "He's not dead!" She and the offender then returned to the garage, where each of them inflicted a further stab wound to the deceased's back. 9 I do not propose to describe in detail the various steps EB and the offender then took in order to dispose of any sign of the deceased or of the fact that the killing had taken place. The body of the deceased was placed in the boot of his car, which EB drove to the Greta area. They dug a hole in the bush, into which they put the body, later covering it with cement. The deceased's car was abandoned in the Mayfield area. 10 After completing the ERISP, the offender took police to various locations where a number of items connected with the killing had been concealed. These included the clothing worn by him and EB during the commission of the offence, the deceased's phone, wallet and car keys, various lists written by EB setting out items to be purchased to facilitate the killing, as well as instructions to the offender. One of the notes read: "Wipe him out of existence, go somewhere two hours out, burn his body, bushland or bury him in bushland, keep driving half an hour out somewhere, burn the parked car, take the number plates, dispose of them on the way then burn all the evidence, drop me off at home, go somewhere about one or two hours out and burn the car." 11 The offender told police that on the day of the killing he had heard that his closest friend had been killed in a car accident the previous evening. He had drunk many bourbons and cokes, and had consumed a number of drugs. It was his concern for EB's children, however, which he said was the primary reason for his killing of the deceased. EB had told him that if he did not kill the deceased she would kill him (the deceased) in the offender's bed. 12 On post-mortem examination the deceased was found to have sustained multiple stab wounds. The most serious wound was located in the central lower chest. It had entered the pericardium and caused a large cut in the side-wall of the aorta which had resulted in extensive bleeding into the chest. A further wound into the right side of the chest had passed through the upper and lower surfaces of the upper lobe of the right lung. Three other wounds had entered the chest cavity without causing damage to major organs, although they would have resulted in a general loss of blood into the chest cavity. Various wounds were found on the back of the right forearm and the back of the right hand. These were almost certainly defensive injuries. The remaining wounds involved soft tissue injuries only. These wounds were numerous, and in combination would have led to a "moderately significant" amount of blood loss. 13 Both the offender and EB were charged with murder and committed for trial in this Court. Following discussions between himself and the authorities, the offender agreed to plead guilty to murder and to give evidence against EB. This is obviously a highly significant matter on sentence and I shall be returning to discuss it later. 14 I turn now to discuss the offender's personal history. He is now 28 years old, having been born on 27 June 1980. His family lived in Curlewis, a small town near Gunnedah. He had an uneventful childhood but was a poor student and left school at the age of 15 when he was part-way through year 9. He has very poor literate skills. After leaving school he had various forms of employment of a manual nature. He had not worked for about two years before the killing of the deceased. 15 Since his mid-teens the offender has smoked cannabis several times a day. He has also regularly injected amphetamines and sometimes used other recreational illegal drugs. He has also consumed large quantities of alcohol. Reports were tendered on sentence from Mr John Taylor, a clinical forensic psychologist, and from Dr Olav Nielssen, clinical psychiatrist. Mr Taylor administered a number of psychological tests. These measured the offender's full-scale IQ at 81, which is at the 10th percentile point, meaning only 10% of the population would be lower. The offender had an above average predisposition to engage in substance abuse, and inadequate impulse control. Mr Taylor considered that he was socially, and probably emotionally, immature. There was no indication that he was suffering from any psychotic disturbance. Mr Taylor said that he offender might be considered "somewhat naïve and easily persuaded due to an intellectual handicap" in accepting EB's statement about the necessity of killing the deceased. 16 Dr Nielssen's opinions were similar. He considered that the offender suffered from substance abuse disorder, but did not have symptoms of psychotic illness. His intelligence was assessed to be at about the bottom of the normal range, which Dr Nielssen said might have made him more susceptible to EB's influence. 17 The offender has had a number of previous brushes with the law. This commenced in 2004 when he was placed on a bond for impersonating a police officer. He had various driving offences and a number of other relatively minor offences for which he was fined or placed on a bond. More significantly, in March 2006, he was sentenced to six months' imprisonment, commencing on 15 February of that year, for an offence of breaking, entering and stealing from a building. In June 2006 that sentence was reduced to three months. At the same time the offender was sentenced to various terms of imprisonment in relation to further charges of affray, resisting an officer in the execution of his duty and assaulting a police officer. He was sentenced to a total of nine months' imprisonment, commencing on 14 March 2006, with a non-parole period of five months concluding on 13 August 2006. He was released from prison on about that date, and met EB not long afterwards. On 6 February 2007 he was placed on a 12 month good behaviour bond for breaking and entering a place of worship and destroying or damaging property. He was subject to this bond when he committed the present offence. 18 The standard non-parole period for murder, of 20 years, is not directly applicable in the present case, given the offender's plea of guilty and his offer to assist the authorities. However, it remains a reference point when assessing both the objective gravity of the offence and the moral culpability of the offender. 19 I turn to consider the objective circumstances of the offence. The one aggravating factor under, s 21A, which is not inherent in the offence of murder, is the fact that this was a deliberately planned killing. The circumstances of the killing were not so extreme as to bring it within the terms of s21A(2)(f), namely that it involved gratuitous cruelty. Nevertheless, the killing itself was a particularly cold-blooded one. It is difficult to imagine the horror experienced by the deceased when he started to realise the enormity of what was happening to him. The large number of injuries – some 35 in all – attest to the ferocity of the offender's attack upon him. The deceased had no chance of escape. 20 All of this, together with the extent of planning for the killing, which was callous in the extreme, would, if all else were equal, support the Crown Prosecutor's submission that the circumstances of the offence put it well above the mid-range of seriousness. But all else is not equal. For as Mr Stratton SC, on behalf of the offender, pointed out, the offender was in many ways a pawn in the hands of EB. He had never had a relationship with a woman before, and his love for EB and her two children, together with his own naivety, made him particularly vulnerable to her demands. The document which EB told the offender was the deceased's "hit list" was tendered on sentence. To any objective observer it is plainly a list of names and telephone numbers, but I accept that the offender totally accepted EB's description of it as the deceased's "hit list". 21 I should say at this point that there is nothing at all in the evidence to support the proposition that the deceased was in fact a hit man, as described by EB to the offender, or that he posed any threat whatsoever to EB or the offender. He must be taken to have been, in all respects, the innocent victim of the plot hatched by EB and perpetrated by herself and the offender. However, the offender himself did not know this. I accept that he genuinely believed that he was protecting EB, and particularly her children, from harm at the hands of this man who had been falsely described by EB as a dangerous gunman. 22 There are thus two competing considerations. On the one hand there is the callous brutality of this carefully planned killing; on the other, the offender's genuine albeit misguided belief that the killing was necessary to protect EB and her children as well as himself. In my opinion these considerations effectively cancel each other out. Accordingly, I would place the circumstances of this killing, as perpetrated by this offender, as essentially in the mid-range of objective seriousness. 23 I should say that a very moving victim impact statement was read in court by the victim's mother, Jean. I would like to convey my and the Court's condolences to her, her husband and other family and friends of the deceased. I hope they understand that, as a matter of law, the extent of the grief of the survivors cannot be used as a measure for the appropriate sentence in a homicide case. 24 I turn to discuss the subjective considerations on sentence. The offender, as already mentioned, has a number of prior convictions, some of them involving a degree of violence, albeit only to a very small degree when compared to the facts of the present case. He spent five months in prison in 2006. I would not use his criminal record itself as an aggravating factor, indeed it cannot be used in that way. However, at the time he committed this offence, he was, as mentioned, subject to a 12 month bond to be of good behaviour. His breach of that bond is an aggravating factor under s 21A, albeit, in the circumstances of this case, it must be regarded as a relatively minor one. 25 I should say at this point that I regard the risk of the offender re-offending in a similar serious manner as low. The offender gave evidence on sentence in which he said he now realised that the deceased was not a hit man. He expressed considerable remorse for his actions, a remorse which I accept as genuine. 26 By far the most significant factors on sentence arise from the following three matters: first, the offender's plea of guilty to murder; second, the assistance he has already given to the authorities; and, third, the assistance which he has promised to give in relation to the charge against EB, particularly his offer to give evidence against her at her forthcoming murder trial. 27 In relation to the first of these matters, the offender pleaded guilty upon arraignment in this Court and is therefore entitled to a significant discount for the utilitarian value of his plea. 28 As to the assistance to the authorities already given by the offender, the Crown tendered an affidavit of Superintendent McKechnie annexing a report by Detective Sergeant Kelly, dated 3 December 2008. In this report Sergeant Kelly expressed the view that, during the offender's ERISP, he was honest and "was endeavouring to assist police with as much information as possible". Following that interview, the offender accompanied police to three locations around Curlewis and Gunnedah where they found property used during the commission of the offence and property taken from the body of the deceased. This included clothing worn by the offender and EB during the killing, handwritten notes alleged to have been written by EB planning different aspects of the killing, as well as receipts for the purchase of items used for the killing. Sergeant Kelly expressed a strong doubt that this evidence would have been obtained by detectives without the offender's assistance. The retention of this property assisted in compiling a complete brief of evidence against EB and the offender. 29 The various objects located by the police as a result of the offender's assistance, particularly EB's handwritten notes, are likely to considerably assist the Crown case against her. This is a relevant matter in determining the appropriate discount on sentence. 30 For the combined utilitarian value of the offender's plea of guilty and the assistance he has already rendered to authorities, I propose to discount the offender's sentence by 27%. 31 The discount to be applied in response to the offender's offer of future assistance needs to be separately quantified. As Mr Stratton has pointed out, there are only two living witnesses to the events of 23 June 2007. Accordingly, the offender's evidence will undoubtedly be central to the Crown case against EB, albeit that there is already strong evidence from Ms Simpson and from EB's own ERISP. There is always the risk that giving evidence for the Crown might adversely affect the conditions of the offender's incarceration, notwithstanding his disavowal of that proposition when he gave his evidence. In the circumstances, I consider that a further discount of 18% is appropriate in relation to this matter. That makes a combined discount of 45%. 32 I should say that I have taken into account the various acknowledged purposes of criminal punishment: the protection of society, both individual and general deterrence, retribution and rehabilitation. Having considered all these matters, together with the objective circumstances of the killing, and the subjective matters relating to the offender, I would, in the absence of his plea of guilty and his assistance to the authorities, have imposed the standard non-parole period of 20 years, together with the statutory minimum additional term. I do not consider that special circumstances exist which would justify a departure from the statutory nexus between the non-parole period and the balance of the term of imprisonment. Applying the combined discount of 45%, a non-parole period of 11 years is reached, together with a balance of term of three years and eight months, making a total sentence of 14 years and eight months. 33 The offender has been in custody since 18 July 2007 and his sentence is to commence on that date. 34 Dean Reginald Fordham, I sentence you to imprisonment to be served by way of a non-parole period of 11 years to commence on 18 July 2007 and expire on 17 July 2018, with a balance of term of three years and eight months, commencing on 18 July 2018 and expiring on 17 March 2022. The earliest date on which you will be eligible for release on parole will be 17 July 2018. **********